Division of the community of goods

During a marriage or a registered partnership or cohabitation there is often a community of goods. The accrued community of goods, also called estate or balance of the community, is divided in case of a divorce. Basically both of you are entitled to half of the balance of the community (assets minus liabilities).

We have to divide our community of goods, but what falls within the scope of the community of goods?

  • movable property: like Household effects, car(s), motorbike(s), trailer, caravan, bike(s) etc,;
  • immovable property: private housing, purchased holiday house, tenement house, business premises belonging to private assets;
  • balance at the bank, assets on postal cheques account, life annuities, accrued assets in life assurances, stocks, bonds etc.
  • mortgages, credits and other debts;
  • inheritance(s) which have become part of the community of goods (also an inheritance which has not been divided yet, because there is a testament on the longest living);
  • donations which have become part of the community of goods.

Tara Mediation can guide you to come to a division which meets your desires at best possible.
Some divisions (i.e. real estate, shares in a partnership) require the intervention of a civil notary according to Dutch law. Tara Mediation can refer you to civil notaries in her network.

We have come to an agreement about the procedure of division of our community of goods. One of us will receive more than 50%. What are the consequences for us?

Should you come to an agreement in which one of you will receive beyond 50%, you should take into account that everything you receive beyond 50% of the community of goods maybe considered as a donation by the Dutch Tax Authorities, a donation which will be taxed (schenkbelasting). On the website of the Dutch Tax Authorities you can find a tool which you can use to calculate the amount of tax due.

Should one party be receiving more than 50% in order to meet an urgent obligation of morality and decency, no amount of tax is due.

The Dutch Tax Authorities can also consider an apportionment beyond 50% as a redemption of alimony, which has a fiscal consequence for the party entitled to: the partition beyond 50% will be taxed as income. For example you have come to an agreement that one of you receives 65% of the community of goods. The value of the extra 15% will be taxed as income.

Am I allowed to take over a debt of my future ex-partner?

You are allowed to take over the debt, but the creditor needs to be notified properly. Just to be sure, you could send the creditor a copy of the decree of divorce with the attached covenant, containing this agreement.

We both use a joint bank account. This bank account has been allocated to me. Is my partner still allowed to use this bank account?

As long as the bank is not notified about this, your ex-partner is allowed to use this account. It would be advisable to inform the bank swiftly. Creditors have the right to recover his/her part. Should your ex-partner for example go bankrupt after the divorce, his or her share of the bank account will become part of the bankruptcy.

We have private housing. What procedure needs to be followed in order to have a proper division?

It is recommendable to view the mortgage deed. Sometimes both of you are jointly and severally liable. In case only one of you has entered into a mortgage loan or credit, the other party is only jointly and severally liable for 50% once the divorce has been finalized.

Should you both have come to the agreement that the private housing is allotted to one of you, the mortgage debt is for account of the allottee. The other party should subsequently be exempted from his or her liability.

Sometimes the mortgager does not provide the exemption, because the house has an undervalue. The bank will then for example only provide an exemption of joint and several liability when another mortgage and/or modification of the amortization is proposed. Should you agree upon this, please note that it involves extra costs. These extra costs should be divided by half, unless otherwise agreed upon.

Should you prefer to redeem the mortgage in full, please note that it might involve a penalty for advance redemption. Possibly you might negotiate with the bank. Also with reference to this matter it would be recommendable to record the agreement with respect to dividing the penalty in a covenant.

We have a rented house and I am going to stay in the rented house? What procedure needs to be followed?

Should one of you stay in the rented house, you could mention this in the covenant by stating that the right to rent is assigned to you. The lawyer will also mention the request for assignment of the right to rent in the mutual request for divorce. The assignment of the right to rent will also be mentioned in the divorce decree.



twitter@taramediation linkedin tara mediation facebook tara mediation pinterest tara mediation youtube tara mediation

Photography: Christina Stoian